Employers are being told every day via the media and advisors that significant change to employment law is coming soon - even if we are not yet 100% sure what the detail of that will be.
The question I find myself asking is ‘do we need to know that to start planning?’ Increasingly, I think that starting the planning process now, including engaging employees, will pay dividends.
Now, you might think that a strange thing for an employment lawyer to say. After all, I am someone for whom the fine detail of the law matters significantly.
But, while trying to work out how things may broadly come into play across the UK, I think we can learn a lot from our European neighbours. After all, level playing field requirements which apply to the terms of the UK’s exit from the EU mean that new UK rules deviating too far from what we see across the EU are unlikely.
The headline-grabbing right to disconnect promised by the Westminster Government (or the right to switch off, as it is often referred to) is an example.
A right to disconnect essentially limits how freely employers can expect workers to engage outside their contracted hours, with the aim of creating a better work-life balance in the post-covid era when more people than ever work from home. The intention is to ensure unreasonable expectations and obligations are not placed on employees, allowing them to enjoy their downtime.
Other countries which have already adopted this right, in some form or another, include France, Spain, Portugal and Belgium.
While there will be many practicalities to consider, the UK is expected to head towards a model which draws on a mixture of the approaches we currently see in Ireland and Belgium. Looking at that for pointers:
- In Ireland, the right is based on a code of practice. It is not legally binding but is taken into account when considering claims against employers, for example for unfair dismissal.
- Belgium’s right is based on legislation which requires employers to agree contact hours with workers either through collective agreements or direct discussions.
- Some jurisdictions have a threshold for the size of employer caught by these provisions (Belgium’s is 20 employees).
Starting to consider now how this could work, drawing on practices in Ireland (and its code) and the Belgian model of dialogue and agreement with staff, will mean a head start when the detail is available.
Another example is the intended legislation that would mean no dismissal after maternity leave for six months.
This one is a little trickier to consider. As all of us who work in HR and employment law know, it is rare for the UK system to prevent or overturn dismissals, rather than allowing employees to claim when they are unfair or discriminatory.
Other jurisdictions, however, take a more proactive approach whereby employers must, in some circumstances, seek approval before dismissing, as in Germany, for example.
The German approach gives us an indication of what the new UK one may look like, including that dismissal during a protected period following pregnancy requires a higher threshold than an ‘ordinary’ dismissal.
Currently in the UK, a decision to dismiss will be fair where it is within a range of reasonable responses – and not discriminatory.
The planned change may well mirror German rules to the extent of requiring a higher standard for a pregnancy or post-pregnancy dismissal – for example that an employer is insolvent or the employee has been guilty of gross misconduct or intentional criminal acts.
As well as making sure records of those on leave and who have recently returned are up to date, starting to look now at disciplinary processes and record keeping will also be time well spent.
Elsewhere, the Westminster Government has confirmed its plan to make unfair dismissal a day one right, though pointing to changes to the use of probation for new starts which may soften the impact of the removal of the qualifying period (currently two years).
Here again, a look at our neighbours could provide an indication as to what’s to come.
For example, in Ireland, probationary periods should not exceed six months, save in exceptional circumstances - and, if exceptionally they are longer, this must be in the interests of the employee and not over 12 months.
Other pointers are that for, fixed-term contracts, the probationary period must be proportionate to the length of the contract and the nature of the work. If renewed for the same role, there should be no new probation, and where an employee has worked for a part of the probation period, before the cap came into force, that should be counted towards the maximum.
By analogy this suggests probation periods (and the period of the expected more relaxed regime for dismissal in the UK) are likely to be subject to a cap of six months, and may even need to be shorter for brief fixed term contracts and give credit for time already spent on probation.
Effective use of probation periods will be vital to manage unfair dismissal risk when the UK government removes the qualifying period and a look at other EU derived rules on probation and its length is a good start for assessing how to handle new hires.
The examples described give scope for employers to start reviewing their probation procedures and policies now, as well as making sure records and processes for review are robust and diarised.
While many questions about change in the UK will not be answered until the legislation is formally presented, we can see some clear paths to help employers to plan.
My advice would be to begin putting HR teams to work to think about how they are going to manage change and about how it will work now – taking a look at our European neighbours for ideas on what works and how.
Published 10 October 2024
